Shing Wing Chiu v. Attorney General and Others
Read the full judgment text of DCCJ 1396/1975 on BabelCite. This District Court judgment was delivered on 29 September 1975.
1. In this action the Plaintiff claims damages against the three Defendants for unlawful arrest and assest committed against him by the 2nd and 3rd Defendants on the 26th day of July 1974 at Nam Wai Village, Sai Kung, New Territories, and in the Sai Kung C.I.D. Office.
Cited by 2 cases
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DCCJ001396/1975 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 1396 OF 1975 -----------------
----------------- Coram: Judge Garcia, D.J. in Court. Date of Judgment: 29 September 1975 ----------------- JUDGMENT ----------------- 1. In this action the Plaintiff claims damages against the three Defendants for unlawful arrest and assest committed against him by the 2nd and 3rd Defendants on the 26th day of July 1974 at Nam Wai Village, Sai Kung, New Territories, and in the Sai Kung C.I.D. Office. 2. The Plaintiff is at present employed as a cook in Pink Uk Prison, Prisons Department, but on the day in question served as an assistant cook on a casual basis in the Tsui King Lau Restaurant in Kwun Tong earning the sum of $40 a day. On that day, he was on leave and had gone to visit his father, who is a resident of Nam Wai Village, and at about 4.40 p.m. the same afternoon, left his father's house, and with his two friends, Ng Kin Kwok and Fong Yuk Ming, went to a bus stop at the junction of Nam Wai Village and Sai Kung Road in order to board a bus to return to work. His two friends were also assistant cooks employed by the same establishment. While they were waiting at the bus stop, a bus bound for Kowloon stopped there, but neither the Plaintiff nor any of his friends boarded it. Their subsequent explanation for not boarding the bus was that it was not the bus they wanted and that the bus was full. At that time, the Plaintiff was holding a plastic carrier bag in his hands, while Fong Yuk Ming was holding a paper one. 3. The 2nd and 3rd Defendants were at that time passing by the scene in a private car driven by the 2nd Defendant, proceeding from the direction of Wong Tai Sin towards Sai Kung, and having observed that the Plaintiff and his two friends had not boarded the bus and for other reasons which aroused their suspicion, the 2nd Defendant made a U-turn, and stopped his car outside a store about 10 feet away from the bus stop. The reasons given by the 2nd and 3rd Defendants for their suspicions being aroused with regard to the Plaintiff and his 2 friends are (a) there were no other persons at the bus stop besides the Plaintiff and his two friends (b) when the bus stopped there, no one alighted from the bus (c) the bus was not full, and therefore the Plaintiff and his two friends could have boarded the bus; and (d) the Plaintiff and Fong Yuk Ming were each holding a carrier bag. The two Defendants alighted from the car and approached the Plaintiff and his 2 friends. 4. At this point there is considerable divergence between the versions given on the one hand by the Plaintiff and his two friends, and on the other, by the two Defendants and two others of the latter's witnesses as to what happened. There is also some difference between the individual versions of the Plaintiff, Ng Kin Kwok and Fong Yuk Ming as to how they were approached by the two Defendants. 5. The Plaintiff says that the time was about 4.45 p.m. when the 2nd and 3rd Defendants approached them at the bus stop after the bus left. The two came along saying they were policemen but did not produce any documents to vouch their identity and placing their hands on each of the shoulders of his friends asked the three of them where they were going and upon receiving a reply that they were bound for Kowloon, without giving any explanation whatsoever proceeded to clap handcuffs on them with the Plaintiff in the centre so that each of his wrists were handcuffed to each of the wrists of his two companions. Ng Kin Kwok says that the two Defendants approached them without his being made aware of it until he was handcuffed, later being told by his friends, the Plaintiff and Fong Yuk Ming, that the 2nd and 3rd Defendants approached them from their right hand side. The third version, which is given by Fong Yuk Ming, is to the effect that the two Defendants approached them from behind and they were unceremoniously held by their collars and without any word or explanation whatsoever they were handcuffed. In all these versions given by the Plaintiff and his two friends there appears one common theme and one which they utter with emphasis and that is all three of them were handcuffed. 6. Both the 2nd and 3rd Defendants state that it was at 5.15 p.m. on the day in question when they approached the Plaintiff and his two friends and the conversation which the 3rd Defendant (he approached them first) conducted with them is summarized by him as follows, after, he says, he showed his warrant card to them:
7. The Plaintiff did testify that the 2nd and 3rd Defendants did verbally reveal their identity as policemen, and so also did Ng Kin Kwok admit that that was so but these two were not satisfied because no documents were produced by either of these two Defendants to substantiate their claim. However Fong Yuk Ming thought the two Defendants were policemen only because they had produced handcuffs. 8. Continuing with the Plaintiff's case, after he and his two friends were handcuffed, they were all led into the 2nd Defendant's private car where they sat in the rear seat with Ng to his right and Fong to his left. 9. Once inside the car which was driven by the 2nd Defendant, the Plaintiff asked that he be allowed to telephone his father to apprise the latter of his predicament but this request was refused. Near the bus stop, variously described as a pavilion, and a shelter by two defence witnesses, there was a stall operated by a villager of Nam Wai, called Shing Hip Fong. He is described by the Plaintiff as his uncle, although this not strictly so since the Plaintiff's father and Shing Hip Fong are only distant cousins. The latter was sub-poenaed as a witness for the Plaintiff but did not turn up at the trial the the reason given that he was ill that day and Plaintiff's solicitor did not therefore require his evidence at this trial. The Plaintiff's version of what happened after he was refused permission to telephone his father is that Shing Hip Fong approached the car in which the Plaintiff and his friends were an and the Plaintiff shouted out to him to telephone his father and upon being asked what the telephone number was, shouted out a reply. For his efforts, the Plaintiff says that he and his friends were slapped once each on the face by the 3rd Defendant and told to stop talking. That the Plaintiff did have a conversation with Shing Hip Fong is confirmed by the evidence of both the 2nd and 3rd Defendants although both of them denied that the Plaintiff was ever assaulted. It has been held that the burden of proving reasonable cause for arrest is on the Defendant Hicks v. Faulkner (1881) 8 Q.R.D. 167. The Defendants have stated that the Plaintiff and his friends voluntarily accompanied them in the car in order to go to the Police Station to be searched, because the Plaintiff did not want to be searched in the street, as was the original intention of the two Defendants. This statement has to be read in the light of what transpired at the bus stop and this is from the version given by the 3rd Defendant in his evidence and which is repeated earlier in this judgment. Further, there is this statement by the 3rd Defendant both in his evidence-in-chief and in answers to questions asked of him in cross-examination:
10. I do not doubt that what has been described by the 3rd Defendant is a brief summary of what occurred at the bus stop but it is illogical to expect that the Plaintiff and his two friends after displaying the attitude above described would willingly go with the two Defendants to their car and be conveyed to the Police Station and be searched there. That there is some corroboration for such a conclusion, that the Plaintiff and his friends had to be forcibly taken into the car as described by them, appears from the evidence of the Plaintiff, Ng Kin Kwok, Fong Yuk Ming, the second and the third Defendants, that is, with regard to the fact that the Plaintiff had to ask Shing Hip Fong from the car to telephone his father for him. If he had not been under any restraint and had willingly accompanied the two Defendants to the car, why had he to ask this favour of Shing Hip Fong from the car, and as a logical extension of this, if he were under no restraint, then there was no reason why he should not have been allowed to telephone his father himself. Moreover in the evidence in chief of the 3rd Defendant is the following passage:
In my judgment, the Plaintiff and his two friends were under arrest from the time they had refused the request of the two Defendants to allow them to search the two carrier bags held by the Plaintiff and Fong Yuk Ming. No reason was given for their arrest, nor was any suspicion that any offence had been committed by either the Plaintiff or by his two friends conveyed to them by the 2nd and 3rd Defendants. The 3rd Defendant, and the 2nd Defendant, sought to justify their action by invoking sections 50 and 54 of the Police Force Ordinance, Cap.232, which are as follows:
11. The powers of arrest and search accorded to a police officer by these two provisions are very wide and the use of these powers require that the conditions under which they may be used be strictly adhered to. The evidence of both the Plaintiff and the 2nd and 3rd Defendants does not in any way indicate that the Plaintiff or his 2 friends were persons who may be charged with or whom the two Defendants reasonably suspect of being guilty of any offence. Again, even if the Defendants had purported to exercise their powers of arrest under section 54 of the Ordinance, in the reasonably belief that the Plaintiff and his friends were acting in a suspicious manner in a public place, that is, at the bus stop, the proper course for the Defendants to take was to inform the Plaintiff the reason for his arrest, and subsequent detention in the Sai Kung Police Station. I think there is no doubt that the Plaintiff was not free to leave the Police Station as he wished having had to sign against an entry made by the 3rd Defendant in his notebook and also against an entry made by the Duty Officer, Sgt. 4906 Wong Kin Choi, in the Report Book before he regained his freedom. It has been well established in the case of Christie v. Leachinsky (1964) A.C. 573 that upon the arrest of a citizen without a warrant in circumstances such as appear in this case, the police officer effecting the arrest must inform the persons arrested of his true ground of arrest and if he fails to do so, the police officer is liable for false imprisonment. 12. The Plaintiff's other ground of complaint is that he was assaulted by the 3rd Defendant on several occasions during that day in question. He states that when he was in the private car driven by the 2nd Defendant, after he had made a request to Shing Hip Fong to telephone his father, he and his two friends were each slapped once on the face by the 3rd Defendant, and the reason given for this assault was that they should keep quiet. The evidence of the Plaintiff's two friends corroborate this particular incident but none of them made any protest at the Police Station nor was any complaint made when they had an opportunity of doing so. The Plaintiff further alleges that they were taken in the car to a stone hut and there each of them were given a slap by the 3rd Defendant in order to remind them that they should not talk too much. Again, whilst the Plaintiff and his two friends corroborate each other in this particular allegation, no protest or complaint was made at the time or when the opportunity arose. After this assault in the stone hut, the Plaintiff states that they were each punched once on their backs by the 3rd Defendant and they were all searched. 13. At the end of the search, it appears that the Plaintiff was singled out for "special" treatment - he was separated from his two companions and he remained with both of his hands handcuffed inside the room with the 3rd Defendant, whilst his two companions were taken to an adjoining room. The Plaintiff was then questioned by the 3rd Defendant ard asked whether he was the fiercest man in Nam Wai Village, and upon receiving a negative answer, the 3rd Defendant began to assault him again by punching him on his left eye and the left side of his back about five or six times. His two companions gave various accounts of this latter assault, Ng Kin Kwok saying that he heard the Plaintiff shout out once "Ai Yah" during the whole of the 20 minutes the Plaintiff was in the room, whilst Fong Yuk Ming states that the Plaintiff moaned all the time during the period he was inside the room, pausing only for a while. Following the assault by the 3rd Defendant, the Plaintiff says that 3 other persons entered the room after the 3rd Defendant left, and he was further questioned. The 3rd Defendant then re-entered the room and he was then asked by the 3rd Defendant if he had taken part in a fight on 21st July 1974 and upon his answering "No", he was asked to admit otherwise he would be beaten to death. He refused to admit and he was then assaulted again by having his hair grabbed from behind, kicked on the back, and punched on his chest. Despite these assaults he still refused to admit. Realising that he was recalcitrant, the 3rd Defendant and the other three men left the room, with the 3rd Defendant returning later by himself saying:"I shall take you to another place in a while, you have to do what I tell you to." Then the Plaintiff and his 2 friends were taken to the Sai Kung Police Station where they were all asked to sign their names against entries made in note-books by police officers in Sai Kung Police Station, including the 3rd Defendant, the contents of which entries, the Plaintiff says they were not allowed to read. Then they were asked to sign their names again in the Report Book kept by the Duty Officer of the Station, against the entry "I am satisfied" which the Plaintiff says he was asked to write at the behest of the 3rd Defendant. After they had signed their names in both books they were released, the Plaintiff stopping off at Nam Wai Village to inform his father as to what had happened whilst the other two, Ng and Fong, continued on their way to Kwun Tong to work. 14. Two matters which are of particular relevance to this case were not mentioned by either the Plaintiff, or his two friends and these are :(a) the presence of Ex. S.D.I. Dibs in the police station at 5.50 p.m. that day in uniform and (b) the Plaintiff's request to the 2nd Defendant to allow him the use of a telephone inside the so-called stone hut in order to call up the manager of Tsui King Lau Restaurant to inform him why he and his two friends would be late for work that evening. 15. The Plaintiff and his two friends admit that these two events did occur but they deny that S.D.I Dibs was in uniform so that they did not know he was a police officer and therefore had no opportunity of complaining of the acts of the 3rd Defendant and the other three police officers, to him. The Plaintiff and his two friends admitted in cross-examination that a request was made of the 2nd Defendant to telephone the manager of the Tsui King Lau. 16. S.D.I. Dibs who was stationed at Sai Kung Police Station on 26th July 1974, but who left the Police Force in January this year, says that at about 5.50 p.m. that afternoon he returned to the Police Station from patrol, in full uniform, and that he saw the 3rd Defendant and two other detectives with 3 young men in the Report Room and upon his inquiring what the matter was, was informed that the three had been taken to the Police Station for a search and that these 3 men were about to leave. He also saw one of the detectives place a note-book in front of one of the young men and the latter was asked whether he was satisfied to which the young man replied in the affirmative and thereupon wrote something in the note-book. All these conversations, between himself and the detectives, and between one of the detectives and one of the 3 young men were conducted in Cantonese since Mr. Dibs speaks and understands Cantonese. Mr. Dibs says further he had not noticed anything unusual about the faces of any of the young men he saw that day and that later in the evening he had occasion to look through the report book where he saw an entry referring to the case in question. I have no reason to doubt Mr. Dibs' evidence as being the truth of what he himself saw and did that day. 17. The Plaintiff and his friends say that the Plaintiff was punched on his face, Ng Kin Kwok saying that he saw that the Plaintiff had a "patch of redness on his cheek behind his left eye" whilst Fong goes so far as to say that the Plaintiff's "left eye was red and swollen." Throughout their evidence, all these three deny that they were aware that the so-called stone hut they were taken into was the C.I.D. Office of Sai Kung Police Station although it was within the boundary of the Sai Kung Police Station, they having been allegedly brought there during daylight hours and it being summer. In my view, the only reason why they were not aware that the stone hut was the C.I.D. Office is that they went there only for the purpose of making a request to use the telephone, it being almost impossible if one were brought there during daylight hours to mistake the stone hut for anything else than the C.I.D. Office of Sai Kung Police Station for the reasons I have mentioned earlier and also because there is a sign at the top of the entrance stating clearly in Chinese characters that that structure housed such an office. 18. The Plaintiff states that after he had left the Sai Kung Police Station he went to his father's house in Nam Wai Village where he told the latter that he was assaulted by police and the only reaction which this statement aroused in the father was that the Plaintiff should go back to Kowloon first, it being 6.45 p.m. then. He eventually returned to his own home in Hollywood Road arriving there at about 8 p.m. and feeling very tired went to sleep. At about 11 p.m. the same evening his wife returned home and she heard his moans and noticed that his left eye was injured. After the Plaintiff explained to her what had occurred, he was taken by her to the Central Police Station where a report was made and eventually he was medically examined at Queen Mary Hospital. It seems rather convenient for the Plaintiff's wife to state that she had been to her mother's that day, and returning home at 11 p.m. to explain the long delay of 3 hours before any report was made to the Central Police Station despite the fact that at the date of the incident the Plaintiff lived only a stone's throw away from the Police Station. The father of the Plaintiff, Shing Tin, says that he went to the Sai Kung Police Station at about 5.25 p.m. to 5.30 p.m. to make inquiries about the Plaintiff after receiving a telephone call from Shing Hip Fong at about 4.45 p.m. regarding the arrest of the Plaintiff but was told that no incident of the type he mentioned was reported. It seems ridiculous but this witness in his evidence says that he did not give his name to the officer on duty nor did he give his son's name and yet he expected to have the requisite information without himself supplying what was patently necessary. This witness also says that he saw that the Plaintiff's eye was red and bruised and that his back was all red, and that he told the Plaintiff to go to Kowloon to see a doctor. This advice was apparently not taken by the Plaintiff nor was it mentioned by him - all he was told to do was to go back to Kowloon first. Surely if the injuries on the Plaintiff were as serious as alleged, he would have taken his father's advice immediately if it were true or else his father would have assisted him in seeking medical attention before he returned to Kowloon. 19. The 2nd and 3rd Defendants deny that they had handcuffed both the Plaintiff or his two friends and that the latter had voluntarily gone to the Police Station to submit to a search, they having originally refused to be searched in the street. They deny having assaulted the Plaintiff. 20. The Duty Officer that day in Sai Kung Police Station, Wong Kin Choi, Sgt. 4906, says that the Plaintiff and his friends were brought into the Sai Kung Police Station by 3 detectives, among whom was the 3rd Defendant, between 5.30 p.m. to 5.40 p.m. and that he had not noticed anything unusual about the Plaintiff and his two friends. The 3 young men were searched in his presence in the Report Room and after signing their names against the entry in the Report Book, they left at 5.55 p.m. The entry made in the Report Book reads as follows:
_______________________________________________________ 21. Details of report, etc. 22. Person brought to Station for search 23. Informant at 1715 hours on 26.7.74 brought to Station from O/S Nam Wai Village, Sai Kung Road 3 C/Ms (1) C/M Ng Kin Kwok 18 years of age of Tung Koon resides at 91, Dist. 1, Tai Ki Ling, Un Long (2) C/M Shing Wing Chin 27 years of Po On resides at 13 Nam Wai Village Sai Kung (3) C/M Fong Yuk Ming 21 years of Tung Koon resides at 148 Block 1 Un Long Estate 1/F., for above. _______________________________________________________ Immediate action and remarks All persons were searched by informant in Report Room Sai Kung and then allowed to go. They have no complaint.
24. At first sight it appears obvious from the language used in the Report that the time the Plaintiff and his friends were brought into the Station before the Duty Officer was 5.15 p.m. yet the Sgt. is at great pains to point out that that was the time at which the 2nd and 3rd Defendants had come across the Plaintiff and his two friends. Having considered the evidence of the Plaintiff's father that he went to the Sai Kung Police Station at about 5.25 p.m. to 5.30 p.m. to look for his son without success, and the evidence of Mr. Dibs who says he was in the Report Room at about 5.50 p.m. that day, I am inclined to accept the explanation offered by the Sgt. that he had made an error in expressing the true situation in the Report Book In my view the entry is also capable of being construed that the Plaintiff and his two friends were brought from Nam Wai Village at 5.15 p.m. I therefore accept that the Plaintiff and his two friends were arrested at 5.15 p.m. on 26th July 1974 and then brought directly to the Sai Kung Police Station appearing before the Duty Officer at about 5.30 p.m. to 5.40 p.m. the same day. 25. Reverting to the evidence of the Plaintiff's father and of the Plaintiff himself so far as the alleged assaults on him are concerned, it seems rather callous of the Plaintiff's father that he ask the Plaintiff to go back to Kowloon first, despite the fact that he had noticed such serious injuries on the Plaintiff. I assume that his father know where the Plaintiff worked, that is in Kowloon, and where he lived, in Hong Kong, and to ask the Plaintiff to go back to Kowloon first was to my mind tantamount to asking him to go back to work in the condition which he states he was. There was in my mind ample opportunity for the Plaintiff or his friends to have made an immediate complaint to Mr. Dibs of any assault which he says was levelled against him by persons who eventually turned out to be police officers, yet this opportunity was not taken. Again another opportunity was missed when they could have refused to sing their names on the Report Book when Mr. Dibs was present yet they signed a report saying in effect that they had no complaints to make. 26. A medical certificate was handed over to the Plaintiff after he was examined in the Queen Mary Hospital and although he has been represented throughout this case by a solicitor, no medical evidence has been called to show the extent of his injuries, if any. Whilst medical evidence is not strictly necessary, I consider that in view of the gravity of the allegations made against the 3rd Defendant in particular, there should be the clearest evidence made available to the Court, and no reason has been afforded as to why such evidence was not adduced. 27. There would in my view be little or no likelihood of either the Plaintiff or his 2 friends making any approach to any police officer, let alone the 2nd Defendant, for a request to telephone their employers to apprise the latter of the reason why they would be late for work that evening, if the Plaintiff and his two friends had been assaulted by the 3rd Defendant as they had described, the natural and logical response to such assault being to avoid the assailants and leave the scene as quickly as possible. After all it was already well past 5.30 p.m., the time they were supposed to go on duty in the Restaurant and there was no reason why they or in particular, the Plaintiff, could not have telephoned the Restaurant from Nam Wai Village. 28. On the whole I am not satisfied on the balance of probabilities that the Plaintiff or his two friends had ever been assaulted by either the 3rd Defendant or by the other police officers in the Sai Kung Police Station. 29. I have already indicated that the Plaintiff was wrongly arrested because he was not informed of the reason for his arrest. I would say that a large part of the blame rests on the Plaintiff and his two friends for what happened since the 2nd and 3rd Defendants had authority under section 54 of the Police Force Ordinance to ask the Plaintiff to submit to a search, after having revealed their identities as police officers. There were no other persons aside from the Plaintiff's so called uncle present who would have caused embarrassment to the Plaintiff and the bus which had oarlier stopped at the bus stop had already gone on its way to Kowloon. The Plaintiff was arrested at 5.15 p.m. and released at 5.55 p.m. about 40 minutes and in the circumstances, there will be judgment for the Plaintiff an unlawful arrest with Damages assessed at $100 against the Defendant.
Representation: Michael Wong of Lau, Wong & Chan for plaintiff. William Lee, c.c., for all 3 defendants. |
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